BIREN VAISHNAV, J.

1. Heard Mr.Arpit Patel learned advocate for Mr.Mukesh Patel learned advocate for the petitioners.

2. Challenge in this petition is to the order dated 04.07.2023 in CMA No.45 of 2023 passed by the Commercial Court, by which, an application to review the order dated 27.02.2023 passed below Exh.22 has been rejected.

3. Looking at the prayer in the petition, it appears that the petitioner has challenged the original order too.

4. Facts in brief would indicate that the petitioner is the original defendant facing a Summary Suit being Commercial Civil Suit No.3247 of 2021 in the City Civil Court at Ahmedabad.

5. It is the case of the plaintiff-respondent herein that he is entitled to decree for a sum of Rs.20,84,166/- along with interest. On summons being issued, the petitioner filed the leave to defend application contesting the suit. By the order impugned in the petition at the first instance, it appears that the Trial Court though observing that there are several triable issues, granted conditional leave to defend with a direction that the defendant/petitioner deposit the sum of Rs.10 lakhs with the Nazir of this Court within 30 days from today. That order was carried in review and the Civil Court at Ahmedabad by order dated 04.07.2023 rejected the review application.

6. Mr.Arpit Patel learned counsel for the petitioner would assail these orders contending that once the Court was of the opinion that the issues are triable, unconditional leave ought to have been granted. In support of his submission, he would rely on an order of coordinate bench of this Court in the case of POSCO Poggenamp Electrical Steel Pvt. Ltd. v. TBEA Energy (India) Pvt. Ltd. rendered in Special Civil Application No.301 of 2023. He would rely on paragraph no.10 thereof. Reliance is also placed on the decision of the supreme Court in case of B.L.Kashyap and Sons Ltd. v. M/s. JMS Steels and Power Corporation & Anr. reported in Civil Appeal arising out of SLP (C) No.19413 of 2018. Para 17 of the judgement is pressed into service.

7. Considering the position of law and reading the provisions of Order 37, it is clear that it is open for the Trial Court to grant leave to defend on a condition that certain amount is deposited before the Trial Court. The proviso to Order 37, SubRule (4) indicates that a part of an amount claimed by the plaintiff is admitted by the defendant to be due from him. Leave to defend suit shall not be granted unless the amount so admitted is deposited by the defendant in the Court.

8. Perusal of the order together with the application of leave to defend indicates that the only defense that the petitioner has raised was regarding the applicability and the quantum of the amount that the defendant/the petitioner owed to the respondent/original plaintiff.

9. For the purposes of this decision, it would be relevant to reproduce para 10 of the order of the Trial Court which reads as under:

“10. In the facts and circumstances of the case, it transpires that there are several triable issues, which are required to be decided on the basis of the evidence led by the parties. Therefore, the defendant is entitled to defend the present suit but at the same time, the duty of the court is to maintain balance between the rival contentions of the parties so that one party does not take undue advantage while taking recourse to the law. The transactions have been admitted by the defendant. The defense of the defendant is that the doors supplied by the plaintiff were of interior quality and defendant has suffered loss due to this. No document has been filed by the defendant on record to show that the doors supplied by the plaintiff were defective. It has been stated that the defendant has lodged complaint with the police and and JMFC Kalol. The copies of these complaints have also not been filed on record to show the bonafide case of the defendant despite the objection being taken by the plaintiff to that respect in the rejoinder.”

10. No error can be found with the order.

11. The fact that the petitioner after the original order was passed on 27.02.2023, tried to get a second shot at order by filing the review on the purported ground that the documents which were in possession of the petitioner could not be produced, obviously was a ploy to avoid deposit of the amount.

12. The petition is dismissed.